Posted on October 7, 2015

California Possession for Sale | Health & Safety Code 11378 HS

Possession for sale of a controlled substance is one of the most common drug offenses in California. Drug sale cases are straight felony offenses and cannot be reduced to a misdemeanor. With the application of Proposition 47, simple possession of any controlled substance without the purposes of sale is a misdemeanor offense. When someone has a drug problem, most courts allow the defendant to seek treatment in local facilities / rehab centers. However, in cases where you’re charged with sales, the court will normally not make rehab an available option since you’re facilitating the use of the drugs.

Possession for the purposes of sale is governed under California Health & Safety Code 11378 hs. The prosecutor must prove beyond a reasonable doubt that:

1. You possessed an illicit narcotic (“methamphetamine”);

2. You knew of its presence and characteristic;

3. The substance was a useable quantity amount;

4. You were in possession of the substance with the intention of selling it.

Some factors the prosecutor argues when establishing you possessed the methamphetamine with the intent to sell are: (1) the quantity; (2) whether you had any scales; (3) large sums of money; (4) your incriminating admission to police; and (5) a witness who observed the transaction(s). Consequently, if you’re convicted of selling meth, then you face 16, 2, or 3 years in county jail. In the event the court grants probation, you will normally be placed on a term of probation for 3 years, court fines will be imposed, as well as drug counseling. Not to mention, a conviction under this charge may have adverse immigration consequences in the event you’re not a United States citizen.

When suspected of selling methamphetamine and a police officer or detective wants to speak with you, it’s in your best interest not to make any statement and demand the presence of a criminal defense attorney immediately. The more you speak to a police officer, the more liable you are to give incriminating statements thereby limiting your legal options for a subsequent defense in court. For instance, if a police officer asks you where the meth came from and you respond with “My friend left it there,” arguably evidences that you knew the meth was there and helping the prosecution’s case that you had “knowledge of the substances presence” element of this offense.

LEGAL DEFENSES TO HS 11378

UNLAWFUL SEARCH: The evidence against you was obtained in violation of your search & seizure right under the Fourth Amendment of the United States Constitution. In this instance, your attorney can file a motion to suppress the evidence contesting the validity of a search warrant; lack of credibility of a confidential informant; exceeding the scope of a permissible search; unlawful vehicle stop; or lack of consent. If successful on any of the above ground(s), the court may order the evidence against you to be inadmissible and the prosecution will unlikely to proceed with the case.

LACK OF SALES: You did not possess the methamphetamine for the purposes of sale. There are a number of factors which your defense attorney can argue to negate the sales element. For instance, you may be a heavy methamphetamine user and the amount you possessed was consistent with your personal use. Or there may be a lack of indicia of sales – i.e., no scales or large sums of money, etc.

USEABLE AMOUNT: The amount you possessed was not a useable quantity. Note however, a useable quantity suffice if you can ingest any part of the substance without feeling any effects.

MIRANDA RIGHTS: The statements attributed to your arrest were obtained in violation of your Miranda rights under the Fifth Amendment of the United States Constitution. If the sales charges are contingent upon your admission to possessing the substance for sale, and the court deems your statements involuntary or as a violation of your Miranda rights, then the court will order your statements inadmissible and the prosecution may have to reduce the charges to simple possession making your eligible for drug treatment programs and/or diversion.

POSSESSION: You were not in “possession” of the controlled substance. There may be instances you were in “momentary possession”. Or perhaps there is a lack of evidence proving you were in actual or constructive possession.

KNOWLEDGE: You did not have the requisite knowledge that you were in possession of the methamphetamine. For example, someone may have left the substance inside your car without your knowledge of its presence.

EXPUNGEMENT

HS 11378 is eligible to be expunged under California Penal Code 1203.4 but there are some limitations to this remedy. For instance, if you were sentenced to state prison as a result of this charge, then you are not eligible to expunge this conviction. In addition, you must not be on probation for any other offense and you cannot have any pending cases against you when seeking this remedy. So long as you were not sentenced to state prison and you completed all orders from the court, then upon proper petition, the court will withdraw its finding of guilty, a not guilty plea will be entered, and the case will be dismissed pursuant to the expungement statute. From that moment forward, you will be released from all “penalties and disabilities” resulting from this conviction. For more information or to discuss your eligibility, contact the Law Offices of John D. Rogers.

EXAMPLE

Dan was driving on a  highway when he was pulled over by a Police Officer for speeding. When the police officer contacted Dan, he told him to get out of the vehicle. When Dan got out of the car he was immediately placed in handcuffs and placed in the backseat of the police car. The police officer then began searching Dan’s car for contraband. Approximately 10 minutes into searching Dan’s car, the police officer finds a bag of methamphetamine under the seat. The weight of the methamphetamine was subsequently determine to be approximately two grams. Dan was arrested and charged with possession of methamphetamine for sale. In this case, Dan’s defense attorney would raise a number of issues including an illegal search of Dan’s vehicle without his consent or probable cause. And his attorney would argue that possession of two grams is consistent with mere personal use and not sufficient to prove sales. Moreover, there were no baggies, scales, large sums of money recovered which are common indicia’s to prove a sales charge.

RELATED OFFENSES

Simple Possession of a Controlled Substance

H.S. § 11550(a): Under the Influence of a Controlled Substance

H.S. § 11379.6: Manufacturing a Controlled Substance

H.S. § 11352: Transportation of a Controlled Substance

CONTACT US TO SCHEDULE A FREE CONSULTATION

If you or a loved one has been arrested, charged, or is under investigation for selling drugs, then contact an experienced Criminal Defense Attorney at the Law Offices of John D. Rogers.

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